Saturday, September 29, 2012

WHAT'S FRIGHTENING ABOUT CYBERCFRIME LAW?

My relaxation reading
these past few days has been Winter of
the World, Ken Follet’s Book 2 of his “The CenturyTrilogy.” The first few chapters are about the
gradual rise of Fascism and Nazism amidst an unsuspecting world lulled by the
idea that the government knows what is best for the people. Meanwhile, within our midst there is
debate going on about how to teach the facts and the lessons of martial law in
schools. I find this to be an
opportune moment to talk about the new Cybercrime Law or RA 10175 to see what
shades of Nazism, Fascism and martial rule they might contain.

The new law is getting to be the talk of the
town these days in legal circles and has signaled hackers of government
websites into action. Inevitably
the controversy on the subject will reach the Supreme Court and the decision should tell us more
about the mind of the new Chief
Justice. Meanwhile, let me just
put down a number of preliminary observations.

The title of the law is “AN
ACT DEFINING CYBERCRIME, PROVIDING FOR THE PREVENTION, INVESTIGATION,
SUPPRESSION AND THE IMPOSITION OF PENALTIES THEREFOR AND FOR OTHER PURPOSES.”

The intention of the law,
partly good and partly chilling, is set down in its Declaration of Policy.
The good intention is to acknowledge the important role of communication
technology can play for the nation’s overall social and economic progress. The chilling part is the empowerment of
the executive arm “to effectively
prevent and combat [cyber] offenses by facilitating their detection,
investigation, and prosecution at both the domestic and international levels,
and by providing arrangements for fast and reliable international cooperation.”

As can easily be seen, the
law deals not only with the most delicate rights of freedom of expression,
freedom of communication, and the privacy of communication but also with the
equally sacred right of the people “to be secure in their persons, houses,
papers and effects” against government intrusion. These rights suffered during the period of martial rule.
Their suppression or impairment are usually the targets of governments who have dark intensions. When criticized, the facile answer to
critics given by those with dark intentions is that these rights are not
absolute. That defense is already
being repeated by Palace mouthpieces.
It is therefore a good time to look into the disturbing aspects of the
law. We might begin by taking at
least a preliminary look at some of the provisions which are now under
attack.

Section 6 of the law
says: “All crimes defined and penalized by the Revised Penal Code, as amended,
and special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of this
Act: Provided, That the penalty to be imposed shall be one (1) degree higher
than that provided for by the Revised Penal Code, as amended, and special laws,
as the case may be.”

Libel has been decriminalized in other
civilized jurisdictions. Our
legislature, instead, will throw us back to the dark ages by imposing a higher
penalty for libel. In effect,
advance in communication technology is being treated not as a boon but as bane.

Section 7 says: “A prosecution
under this Act shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special laws.” This is a clear invitation, if not to
double jeopardy, at least to harassment through threat of a second
prosecution. If you are thinking
that second prosecution for the same offense is just an invention of American
jurisprudence, guess again. Even under Spanish law it was already prohibited by
the Fuero Real and the Siete Partidas. Secion 7 is once again a throwback to
the era even before Fuero Real and Siete Partidas were born.

But what is most
disturbing to many is section 19 which says: “When a computer data is prima facie found to be in violation of
the provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.”

There are very valid
reasons for being frightened by this. I for one recall the law on search and seizure in
effect during the past martial law period. Whereas now no search warrant or warrant of seizure may
issue except upon probable cause to be determined by a judge, Section 19, now
popularly called the “takedown provision,” does not require probable cause but
only prima facie evidence determined not by a judge but by the Department of
Justice. This is a throwback to
the provision under martial rule when warrants for the search and seizure of
persons, houses, papers and effects could be issued by a “responsible officer
as may be authorized by law.” Not
only that; whereas under the draconian rule of martial law warrants could issue
only after “examination under oath of the complainants and witnesses he may
provide,” no such safeguard is found in Section 19.

It will not do to say
that whatever shortcomings there are in RA 10175 will be remedied by Rules and
Regulations. Rules and regulations
cannot cure defects in a law.
Moreover, RA 10175 is a penal law that commands obedience under pain of
punishment. Fundamental fairness
demands that those commanded should be able to understand what the command says
simply by reading the law.

Our trapos having been in control of the peoples lives for the longest time is under the illusion that they can also control the internet as if it was just their political turf. They are in for a big disappointment and hopefully those with reasonable minds prevail or they might just slide back to their fascistic tendencies.......... and that is how Aquino's "righteous path" morphs itself to TUWAD na daan, LOL........

It seems that the takedown provision allows the DOJ to order Facebook to restrict all accounts "infected" with the prima facie libelous material. I wonder how Facebook (or some other, like Google) will respond.